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The shape of computing over the next few years may be heavily influenced by some legal contracts pertaining to Unix that were written more than a decade ago. The SCO Group is claiming that IBM has violated its Unix contract by contributing certain code to Linux. SCO is also alleging that Linux users are illegally running some of the company's copyrighted code.

I was initially quite skeptical about these claims, but after talking with several of the principals in the case, I'm not so sure anymore. The history of SCO and Unix is complex. Unix was created by AT&T, which licensed versions to many organizations. One licensee, The Santa Cruz Organization (SCO), sold a version of Unix for Intel x86based computers. Eventually, AT&T sold Unixincluding the patents and copyrightsto Novell, which tried to make UnixWare a competitive operating system. The strategy wasn't particularly successful, so Novell sold its Unix business to SCO.

Meanwhile, Linus Torvalds created and popularized Linux by using the open-source general public license (GPL). A number of companies, including Caldera, Red Hat, and SuSe, developed their own Linux distributions. IBM and others soon began promoting Linux as an enterprise operating system for servers. As a result of these efforts and the inroads Windows was making on servers, SCO's Unix business on x86 systems declined. In 2001, Caldera acquired SCO's server division, later changing its name to The SCO Group.

That's when the copyright controversy emerged. Chris Sontag, a VP at SCO, recently visited PC Magazine's offices with a stack of documents he claims proves SCO's case. Some of these documents are compelling. Sontag explained that SCO owns the copyright to Unix System V. He said that through kernel 2.2, Linux was progressing fine under the GPL. But in the transition to kernel 2.4, code was added that violates SCO's copyrights.

Some of the evidence Sontag showed us is straightforward: Sections of the Linux kernel code relating to the journaling file system and multiprocessor support are identical to the Unix System V code. He offered to show us specific sections of the Unix code, but only under a nondisclosure agreement, which we refused. He said this code was not added to Linux by IBM but by someone else, and that it's a violation of SCO's copyright. I'm not a lawyer, but his argument seems convincing.

Sontag then explained that IBM's Unix contract prohibits disclosure of the source code for Unix or for "derivative" works based on Unix. He said that IBM contributed code to Linux, sections of which were derivative of Unix, created originally for IBM's AIX. This, according to Sontag, is in violation of IBM's contract. One thing is clear: The lawyers from IBM and SCO will be arguing about this for some time.

I also recently spoke with Steve Mills, head of IBM's software group, who said that it's mostly an AIX contract issue and that IBM has "perpetual, irrevocable rights" to Unix. IBM lawyers are convinced the company did not violate the contract, and IBM has countersued SCO. According to Mills, SCO was a distributor under the GPL, so SCO gave away any rights it had. He also said that SCO has seen the code for years but didn't raise any copyright issues until now. Mills made clear that IBM does not provide a Linux distribution but instead supports other companies' distributions. He has seen no change in customers' plans due to the SCO suit.

The case is scheduled to go to court in 2005, and I expect that a resolution will take years. In the meantime, IBM will continue to support Linux, and SCO is threatening legal action against Linux users. But Sontag says that SCO isn't going after Red Hat now, because that "would kill Linux," which SCO doesn't want to do.

This controversy is likely to worry some big Linux customers. I wouldn't be surprised to see a big company pay SCO a license fee (SCO wants $700 for a single-CPU license) just to avoid a lawsuit. And I expect the open-source community to pull together quickly to try to figure out who wrote each section of the Linux kernel distribution and remove or rewrite the controversial code. This will take many months, but it's the prudent thing for the community to do.

So far, the winners are the companies that recently paid license fees to SCO: Microsoft and Sun. And the big losers? All those people who installed Linux thinking they were getting a legal open-source operating system and now have to worry about whether it was indeed too good to be true.

Michael J. Miller's Forward Thinking Blog: forwardthinking.pcmag.com
Michael J. Miller is chief information officer at Ziff Brothers Investments, a private investment firm. From 1991 to 2005, Miller was editor-in-chief of PC Magazine, responsible for the editorial direction, quality and presentation of the world's largest computer publication.
Until late 2006, Miller was the Chief Content Officer for Ziff Davis Media, responsible for overseeing the editorial positions of Ziff Davis's magazines, websites, and events. As Editorial Director for Ziff Davis Publishing since 1997, Miller took an active role in...
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